The
New York Times
has reported that the Supreme Court has handed its third consecutive
rebuff to the Bush administration’s handling of the detainees
at Guantánamo Bay, ruling 5 to 4 that the prisoners there
have a constitutional right to go to federal court to challenge
their continued detention. The finding, Boumediene
v. Bush, (pdf) reversed and remanded a refusal of the DC Circuit
Court to issue a writ of habeas corpus to Gitmo internees.
This decision
has received rave reviews. Jacob Hornberger (my top Constitution
mentor, bar none!) called it "a stunning rebuke of President
Bush, the Pentagon, and Congress." Jonathan Taplin said "I
think it is hard to overstate how important the Supreme Court decision
was." The Houston Chronicle editorialized that we shall
have "No King George – U.S. Supreme Court preserves freedom
by backing the Constitution’s ban on arbitrary imprisonment."
The Salt Lake Tribune: "Supreme Court rightly affirms
the Constitution" Jonathan Hafetz, writing in The Nation:
"Supreme Court Deals Death Blow to Gitmo – Today’s ruling
by the Supreme Court in Boumediene v. Bush delivered a dramatic
blow to the President’s lawless detention policies and overturned
an effort by the previous Congress to eliminate the centuries-old
right of habeas corpus." And so on.
But the adulation
wasn’t unanimous. After all, four of the nine Court justices disagreed
with it. Justice Antonin Scalia spoke for the minority: “Today,
for the first time in our nation’s history, the court confers
a constitutional right to habeas corpus on alien enemies detained
abroad by our military forces in the course of an ongoing war.”
I know this
may not surprise a lot of people, but Justice[sic] Scalia was approximately
ninety-nine per cent wrong. This ruling applies to the 275 prisoners
at Gitmo but not to the tens of thousands of other people that the
US military has detained abroad, primarily in Iraq.
What did the
Supreme Court say about applicability?
"The
Constitution grants Congress and the President the power to acquire,
dispose of, and govern territory, not the power to decide when and
where its terms apply. To hold that the political branches may switch
the Constitution on or off at will would lead to a regime in which
they, not this Court, say “what the law is.”
So apparently
Boumediene applies directly only to Gitmo prisoners, because of
the "territory" consideration. The US has a long-term
lease at Guantanamo Bay, Cuba. But apparently it doesn’t apply wherever
in the world that the US military has detention facilities.
The US has
700 bases in 120 countries around the world, and enjoys nefarious
relationships with dozens of others (such as Syria, Saudi Arabia
and Egypt). Many of these countries are not known as champions for
human rights. Are any US detainees on any of these bases now empowered
to petition a US court for a writ of habeas corpus, and appeal to
the Supreme Court when they don’t get it? Apparently not.
US-run prisons
in Iraq and Afghanistan hold tens of thousands of prisoners, and
the US puppet governments in both places hold thousands more (a
bit fewer in Afghanistan – 870 inmates escaped in a recent
prison break).
In Iraq, some
claim that the American captors have eliminated the physical torture
that was once part of the regimen at Iraqi prison camps, part of
a new plan to avoid creating new enemies through mistreatment. But,
as the military supposedly institutes a plan to turn many of its
over twenty thousand prisoners over to the Iraqi government, some
fear the abuse will resume. Most of these prisoners, if not all,
were the subjects of arbitrary arrest in neighborhood sweeps in
the middle of the night and have done nothing wrong, except to be
living in Iraq as a young male.
According to
Ciara Gilmartin, writing for CounterPunch,
"Detainees are held by the U.S. command in two main locations
– Camp Bucca, a 100-acre prison camp and Camp Cropper, inside
a massive U.S. base near the Baghdad airport. The number of Iraqis
held in these facilities has steadily risen since the early days
of the occupation. In 2007, the inmate count rose 70% – from
14,500 to 24,700. Camp Bucca, with about 20,000 inmates, is perhaps
the world’s largest extrajudicial internment camp. The facility
is organized into "compounds" of 800 detainees each, surrounded
by fences and watch towers. Most detainees live in large communal
tents, subject to collapse in the area’s frequent sandstorms. Water
has at times been in short supply, while temperatures in the desert
conditions can be scorching hot in the day and bone-chilling at
night. In October 2007, the U.S. Army Corps of Engineers awarded
a contract to expand Camp Bucca’s capacity from 20,000 to 30,000.
While easing notorious crowding, the contract suggests Washington
is preparing for even more detentions in the future.
"Camp
Cropper consists of more traditional cellblock buildings. Among
its roughly 4,000 inmates are hundreds of juveniles. Cropper is
a site of ongoing interrogation and it holds many long-term detainees
who complain that they never see the light of day. Though recently
expanded, the facility suffers from overcrowding, poor medical attention
and miserable conditions. U.S. forces are holding nearly all of
these persons indefinitely, without an arrest warrant, without charge,
and with no opportunity for those held to defend themselves in a
trial. While the United States has put in place a formal review
procedure that supposedly evaluates all detainees for release on
a regular basis, detainees cannot attend these reviews, cannot confront
evidence against them, and cannot be represented properly by an
attorney. Families are only irregularly notified of the detentions,
and visits are rarely possible."
It gets worse.
According to Human
Rights Watch, US military authorities were as of May 12, 2008
holding 513 Iraqi children as “imperative threats to security,”
without due process, and have transferred an unknown number of other
children to Iraqi custody.
In Afghanistan,
the New
York Times reports, "The American detention center,
established at the Bagram military base as a temporary screening
site after the invasion of Afghanistan in 2001, is now teeming with
some 630 prisoners – more than twice the 275 being held at
Guantánamo. The administration has spent nearly three years
and more than $30 million on a plan to transfer Afghan prisoners
held by the United States to a refurbished high-security detention
center run by the Afghan military outside Kabul. But almost a year
after the Afghan detention center opened, American officials say
it can accommodate only about half the prisoners they once planned
to put there. As a result, the makeshift American site at Bagram
will probably continue to operate with hundreds of detainees for
the foreseeable future, the officials said. Meanwhile, the treatment
of some prisoners on the Bagram base has prompted a strong complaint
to the Pentagon from the International Committee of the Red Cross,
the only outside group allowed in the detention center." Afghanistan,
if we believe the politicians, will soon replace Iraq as the principal
US military target and so we can expect US military detainees to
increase there.
The Pentagon
operates military
prisons in many places besides Cuba, Iraq and Afghanistan, including:
Mannheim, Germany; Yokosuka and Sasebo, Japan; Rota, Spain; Roosevelt
Roads, Puerto Rico; Keflavik, Iceland; Naples, Italy and Guam. There
are brigs on over twenty US Navy warships. Do these prisons house
detainees who are denied due process? Who knows.
Is it feasible
to provide due process to US military detainees in places other
than Cuba, in those places where the "territory" consideration
doesn’t apply? The Israelis apparently have found a way. Israel
provides judicial review for all its detainees, according to an
‘amicus curiae’ (friend
of the court brief) (pdf) sent in by seven Israeli law professors
on the Boumediene case. "Judicial review of executive and military
detention, the indispensable core of habeas corpus, need not be
sacrificed to protect public safety and national security, even
in the face of an unremitting terrorist threat. Israel has demonstrated
that security detainees and prisoners of war, including alleged
unlawful combatants, can and should be afforded the opportunity
for prompt, independent judicial review of the factual basis for
their confinement."
So while we
might celebrate the arrival of due process for the hundreds of civilians
who allegedly abetted al Qaeda, we should also find a way to extend
the same rights to the tens of thousands who have allegedly hindered
the US occupation of their countries. How? The Congress has the
Constitutional
power, under Article I Section 8, "To make Rules for the
Government and Regulation of the land and naval Forces" that
would bring the treatment of all detainees, not just a small percentage
of them, into accordance with not only the Constitution but also
the Geneva Convention
and the Nrnberg
Principles.
When a Member
of Congress stands up for the Constitution and says: "Mr. Speaker,
I hereby introduce a bill to extend to our liberated but detained
subjects overseas the same rights recently granted to alleged al
Qaeda confederates being held at Guantanamo Bay," and that
bill becomes law, only then will the Constitution be fully affirmed,
and only then will I reach for the bubbly while recalling the stirring
words of the Leader
Of The Free World: "Our commitment to democracy is tested
in countries like Cuba and Burma and North Korea and Zimbabwe –
outposts of oppression in our world. The people in these nations
live in captivity, and fear and silence. Yet, these regimes cannot
hold back freedom forever – and, one day, from prison camps
and prison cells, and from exile, the leaders of new democracies
will arrive." ~ GW Bush, Nov 6, 2003
June
17, 2008
Don
Bacon [send him mail]
is a retired army officer who founded the Smedley
Butler Society several years ago because, as General Butler
said, “war is a racket.”
